Office of Public AffairsFOR IMMEDIATE RELEASEWednesday, February 23, 2011

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about theDepartment’s course of action in two lawsuits,

Pedersen v. OPM

and

Windsor v. United States

, challenging Section 3 of the Defense of Marriage Act (DOMA), which definesmarriage for federal purposes as only between a man and a woman:In the two years since this Administration took office, the Department of Justice hasdefended Section 3 of the Defense of Marriage Act on several occasions in federal court.Each of those cases evaluating Section 3 was considered in jurisdictions in which bindingcircuit court precedents hold that laws singling out people based on sexual orientation, asDOMA does, are constitutional if there is a rational basis for their enactment. While thePresident opposes DOMA and believes it should be repealed, the Department hasdefended it in court because we were able to advance reasonable arguments under thatrational basis standard.Section 3 of DOMA has now been challenged in the Second Circuit, however, which hasno established or binding standard for how laws concerning sexual orientation should betreated. In these cases, the Administration faces for the first time the question of whetherlaws regarding sexual orientation are subject to the more permissive standard of reviewor whether a more rigorous standard, under which laws targeting minority groups with ahistory of discrimination are viewed with suspicion by the courts, should apply.After careful consideration, including a review of my recommendation, the President hasconcluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a moreheightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and istherefore unconstitutional. Given that conclusion, the President has instructed theDepartment not to defend the statute in such cases. I fully concur with the President’sdetermination.Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the SecondCircuit. We will, however, remain parties to the cases and continue to represent theinterests of the United States throughout the litigation. I have informed Members of